E-BILL, 2012
The Malawian [=]
Arrangement of sections
Part IPRELIMINARY PROVISIONS
1. / Short title
2. / Objectives
3. / Supremacy
4. / Principles
5. / Authority in charge of implementation
6. / Interpretation
Part II
E-TRANSACTIONS
Chapter 1 - Recognition of the legal value of electronic communications
7. / Recognition of the legal effect of electronic messages
8. / Writing
9. / Electronic signature
10. / Determination of originality of electronic message
11. / Admissibility and evidential weight of electronic messages
12. / Storage of electronic messages
Chapter 2 - Formation of an electronic agreement
13. / Validity
14. / Offer and acceptance
15. / Time and place of dispatch and receipt of an electronic message
16. / Attribution of electronic message to originator
17. / Acknowledgment of receipt of electric message
Part III
ONLINE USER’S PROTECTION AND LIABILITY OF INTERMEDIARIES AND CONTENT EDITORS
Chapter 1 - Illegal/restricted content
18. / Limitations to the freedom of communication
Chapter 2 - Obligations and liabilities of service providers
19. / No general obligation to monitor
20. / Hosting
21. / Saving of data
22. / Notification of infringing messages or activities
Chapter 3 - Obligations of editors of online contents
23. / Definition of editors
24. / Right of reply
Part IV
E-COMMERCE
Chapter 1 - Consumers’ protection
25. / Information to be provided by sellers
26. / Conclusion of electronic contracts with consumers
27. / Right of withdrawal
28. / Performance of electronic transaction
29. / Default
30. / Cancellation of payment
Chapter 2 - Online advertising
31. / Principles
32. / Identification of advertisement content
33. / Unsolicited communications
Chapter 3 - Taxation of e-commerce operations
34. / Value-added taxation
35. / Custom duties
Chapter 4 - Specific provisions for the financial and banking sector
36. / Scope of application
37. / Identity of the person providing financial or banking services
38. / Withdrawal right
Part V
SECURITY IN DIGITAL ECONOMY
Chapter 1 - Cryptography
39. / Use, supply, transfer, import, export of encryption means
40. / Provision of encryption services
41. / Administrative sanctions
Chapter 2 - Cyber criminality
42. / Cyber inspections
43. / List of cyber crimes
44. / Malawi CERT
Chapter 3 - Data protection and privacy
45. / Manner and purpose of collection and processing of personal information
46. / Data subject’s rights
47. / Accuracy and completeness of information
48. / Security obligations
49. / Powers of the Authority
Part VI
DOMAIN NAME AND MANAGEMENT
Chapter 1- Registration and management of domain names
50. / Main principles applicable to the regulation of domain names
51. / Licensing of registrars and registries
52. / Rules applicable to registries
Chapter 2- Dispute resolutions of domain names
53. / Principles
Part VII
E-GOVERNMENT
54. / Principles applying to electronic filing and issuing of documents
55. / Specific requirements by public body
56. / Implementation of e-government
Part VIII
E-WASTE
57. / Licences for e-wastes
58. / Handling of e-wastes
59. / Storage of e-wastes
60. / Procedure for recycling, reprocessing of e-wastes
Part IX
MISCELLANEOUS
61. / Code of conducts
62. / Transition provisions
63. / Entry into force
A B I L L
entitled
E-BILL
The development of the information society has originated considerable progresses in the information and communications technologies (“ICT”) sector.
Most significant steps of these changes are networks digitalization, components miniaturization and more recently the development of the Internet and mobile telephones. The Republic of Malawi is convinced that its predominantly agro-based economy can rapidly grow and diversify through participation in the information society. In order to fully benefit from the information revolution, the Republic of Malawi needs to modernize various sectors of its economy using ICT. The main objective of the Malawian Government is to have the Republic of Malawi benefit from a true technological leap which may fasten its economic growth by enabling the development of new economic activities thanks to the implementation of a secure legal framework regulating the use of ICT.
The current legal framework applicable in the Republic of Malawi does not provide economic actors and citizens with a secure and reliable legal environment which is however essential to the development of electronic transactions.
Consequently, the Malawian Government wishes to enact a bill which will enable the development of the information society in the Republic of Malawi within a legal framework. Whenever possible, current legal and regulatory texts shall remain applicable to situations involving ICT. Nevertheless, ICT have created new legal issues which require specific legal answers.
In this respect, this bill addresses the following main issues:
- Legal recognition of electronic messages. This recognition does not exist as such in the current legal framework in the Republic of Malawi, whereas it is a condition to the development of electronic transactions in the country. Any written document and any signature should be possibly created and stored in an electronic manner. Electronic documents should have the same legal probative force as paper documents.
- Proceedings applicable to the conclusion of electronic contracts. Rules regulating the conclusion of contracts need to be specified and clarified in order to ensure security with respect to electronic transactions.
- Legal responsibility of various actors. With respect to the Internet, as it is the case regarding television, radio, or written press, the freedom of speech should be limited by certain principles of public order. The bill defines precisely the responsibility of technical service providers and editors of online contents.
- Consumer protection with respect to e-commerce. Online purchase of services or goods requires the adoption of specific provisions in addition to classical consumer rules. Consequently, the bills provides for specific obligations lying on professionals regarding the display of information and online advertising.
- Taxation. The bill intends to detail the circumstances under which value added tax and customs fees can apply to e-transactions.
- Online financial services. The importance and the specificity of the risks of these services have driven the Government of the Republic of Malawi to introduce very strict provisions regulating the online provision of financial and banking services.
- Encryption. The bill includes specific provisions ensuring the security of digital economy. In particular, the bill provides for the legal framework regulating encryption in conformity with international best practices.
- Cyber criminality. The bill sets out the principles for combating crimes in the e-environment and establishes a dedicated institution, the Malawi CERT, to fight against cyber threats and attacks.
- Data protection. The bill provides for specific provisions in order to regulate online collection of personal information regarding users and imposing systematic information on the purposes of the data processing and the rights of the data subject.
- E-Government. The bill reminds the obligation for administrations to do their best efforts to promote the development of online public services and facilitate the use of ICT in the Republic of Malawi.
ENACTED by the Parliament of Malawi as follows -
Part IPRELIMINARY PROVISIONS
Short title / 1. / This Bill may be cited as the E-Bill, 2012.
Objectives / 2. / 1. The objective of the Bill is to set up a responsive ICT legal framework that shall facilitate competition, development of ICT and the participation of the Republic of Malawi in the information age and economy.
More particularly, the Bill purports to:
(a) Ensure that the development, deployment and exploitation of ICT within the economy and society and related legal provisions will balance as well as protect community and individual interests, including privacy and data protection issues.
(b) Address ethical issues in the use of ICT to protect the rights of children and the under-privileged.
(c) Define favourable tax policies that promote ICT products and services that originate from within the Republic of Malawi.
(d) Provide a responsive and efficient regulatory environment, promote economic subsectors, assets accumulation and tax activities that arise from ICT use.
2. Meanwhile, the Malawian public shall be protected from undesirable impacts of ICTs including the spread of pornographic materials, cyber-crimes and digital frauds.
The Bill aims at putting in place mechanisms that will safeguard the public from fraud, breach of privacy, misuse of information and immoral behaviour brought about by the use of ICT
3. The Bill will need to be updated regularly, taking cognizance of the rapid changes in the ICT industry worldwide.
Supremacy / 3. / Where any inconsistency arises between the provisions of the Bill and the provisions of any other written law relating to the regulation of ICT, the provisions of the Bill shall prevail to the extent of the inconsistency.
Principles / 4. / 1. Information and communication technology activities shall benefit from a secure legal framework recognizing the legal value of electronic transactions and electronic documents.
2. Communication over electronic networks shall be free with the exception of specific reasons as provided in the Bill.
3. Responsibility of intermediaries and editors shall be clearly and fairly specified.
4. Protection of the consumers shall be enhanced and respected.
5. Information and communication technology activities may be restricted for security reasons.
Authority in charge of implementation / 5. / The Authority shall be in charge of the implementation and of the enforcement of the provisions of the Bill, with its specific missions being defined throughout the relating provisions in the Bill.
Interpretation / 6. / In the Bill, unless the context otherwise requires -
“advertising” / means the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations.
“Authority” / means the Malawi Communications Regulatory Authority also named MACRA.
“Bill ” / means the E-Bill, 2012.
“certificate” / means a record which is issued by a certification provider for the purpose of supporting an electronic signature which:
(i) purports to confirm the identity or other significant characteristics of the person who holds a particular key pair;
(ii) identifies the certification provider issuing it;
(iii) names or identifies the person to whom it is issued;
(iv) contains the public key of the person to whom it is issued; and
(v) is signed by a responsible officer of the certification provider issuing it.
“certification provider” / means a person providing an authentication product or service in the form of a certificate as defined above.
“Malawi CERT” / means the Computer Emergency Response Team for the Republic of Malawi set up under Article 44.
“Comesa” / means the Common Market for Eastern and Southern Africa.
“comparative advertising” / means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.
“computer system” / means a device or a group of interconnected or related devices, one or more of which, pursuant to a program, performs automatic processing of data.
“consumer” / means any natural person who enters or intends to enter in contact by electronic means with a supplier as the end-user of the goods or services offered by the latter and acts for that purpose outside his / her trade, business or profession.
“cyber inspector” / means a person appointed as such under Article 42.
“data controller” / means any person, either alone or in common with other persons, who controls and is responsible for keeping and using personal information on a computer and electronically requests, collects and collates, processes or stores personal information from or in respect of a data subject.
“data subject” / means the natural person from whom data relating to him/her are collected by the data controller.
“data subject's consent” / means any freely given specific and informed indication of his/her wishes by which the data subject signifies his/her agreement to personal data relating to him/her being processed.
“distance contract for the provision of financial services” / means any contract concerning financial services concluded between a supplier and a consumer under an organised remote sales or service-provision scheme run by the supplier, who, for the purpose of that contract, makes exclusive use of one or more electronic means up to and including the time at which the contract is concluded.
“e-government services” / means a public service provided by electronic means by a public body in the Republic of Malawi.
“electronic commerce” / means the economic activity consisting for a person to provide by electronic means remote services and products, particularly services that consist of providing online information, commercial communications, and research tools, or access to and downloading of online data, access to a communication network or the hosting of information, for free or not.
“electronic communication” / means any communication through electronic messages.
“electronic message” / means any communication created, sent, received or stored by electronic communication means such as (but not limited to) computerized data exchange system, electronic mail system, instant messaging.
“electronic signature” / means data in electronic form affixed to or logically associated with other electronic data which may be used to identify the signatory in relation to the electronic message and to indicate the signatory’s approval of the information contained in the electronic message.
“encryption” / means a method transforming signals in a systematic way so that the signal would be unintelligible without a suitable receiving apparatus.
“e-wastes” / means any discarded electronic or electrical devices or their parts likely to cause danger to health or environment, whether alone or when in contact with other wastes or substances.
“financial services” / means any service of a financial nature, including all insurance and insurance-related services, and all banking and other financial services.
“Gazette” / means the Republic of Malawi Government Gazette;
“information system” / means a system for generating, sending, receiving, storing, displaying or otherwise processing electronic messages, and includes Internet.
“intermediary service providers” / means any legal or physical person or any entity that provides electronic communications services consisting of (i) the provision of access to communications networks, (ii) storing or (iii) transmission of information through communication networks.